Chương 1 Nghị định 59/2011/NĐ-CP chuyển doanh nghiệp 100% vốn nhà nước: Những quy định chung

Chapter I

GENERAL PROVISIONS

Article 1. Objectives and requirements of the transformation of enterprises with 100% state capital into joint-stock companies (below referred to as equitization)

1. To transform enterprises in which the State does not need to hold 100% of their capital into ones with multiple owners; to mobilize capital of domestic and foreign investors to increase financial capacity, renew technology and renovate management modes with a view to increasing the effectiveness and competitiveness of the economy.

2. To harmonize the interests of the State, enterprises, investors and enterprise employees.

3. To ensure publicity and transparency on the market principle; to end the problem of closed equitization within enterprises; to link equitization with development of the capital and securities markets.

Article 2. Enterprises to be equitized

1. Single-member limited liability companies in which the State holds 100% of charter capital and which are parent companies of state economic groups or corporations (including state-owned commercial banks).

2. Single-member limited liability companies in which the State holds 100% of charter capital and which are enterprises of ministries, ministerial- level agencies, government-attached agencies or provincial-level People’s Committees.

3. Enterprises with 100% state capital which have not yet been transformed into single-member limited liability companies.

Article 3. Equitization conditions

1. Enterprises specified in Article 2 of this Decree may be equitized when fully meeting the following two conditions:

a/ They are other than those in which the State needs to hold 100% of charter capital. The list of enterprises in which the State holds 100% of charter capital is decided by the Prime Minister for each period;

b/ There remains some state capital after their financial issues are settled and they are revaluated.

2. If the actual value of an enterprise, after its financial issues are settled and it is revaluated under Chapters II and III of this Decree, is lower than its liabilities, the agency competent to decide on its equitization plan shall direct it in coordinating with the Vietnam Debt Trading Company and its creditors in working out an enterprise restructuring plan. In case such enterprise restructuring plan is infeasible and ineffective, other modes of transformation provided by law can be applied.

Article 4. Forms of equitization

1. Keeping unchanged existing state capital portions in enterprises, issuing additional stocks to increase their charter capital.

2. Selling part of existing state capital portions in enterprises or in combination with issuing additional stocks to increase their charter capital.

3. Selling all existing state capital portions in enterprises or in combination with issuing additional stocks to increase their charter capital.

Article 5. Methods of initial sale of shares

1. Initial sale of shares shall be conducted by public auction, issuance underwriting or direct agreement under Chapter IV of this Decree.

2. Depending on potential purchasers and conditions on initial purchase of shares, equitization-deciding agencies shall determine appropriate methods of share sale.

3. The Ministry of Finance shall guide in detail the initial sale of shares under this Decree.

Article 6. Share purchasers and conditions for purchasing shares

1. Domestic investors:

a/ Domestic investors include Vietnamese individuals and organizations established and operating under Vietnamese law (except those specified at Point a, Clause 2 of this Article).

b/ Domestic investors may purchase shares of equitized enterprises in unlimited quantity, except the cases specified in Clauses 4 and 5 of this Article.

2. Foreign investors:

a/ Foreign investors include foreign organizations and individuals defined in each period by the Prime Minister in the Regulation on contribution of capital to or purchase of shares of Vietnamese enterprises by foreign investors.

b/ Foreign investors may purchase shares of equitized enterprises under this Decree and relevant legal documents.

c/ Foreign investors wishing to purchase shares shall open deposit accounts at payment service-providing institutions in accordance with the Vietnamese law on foreign exchange.

3. Strategic investors:

a/ Strategic investors are domestic investors and foreign investors that have an adequate financial capability and written commitments made by their competent persons to being attached to enterprises in long-term interests and providing enterprises with post-equitization supports in transferring new technologies, training human resources, raising financial capability, managing enterprises, supplying raw materials and materials and developing product outlets.

b/ On the basis of the charter capital size, characteristics of business lines and development and expansion requirements of enterprises, enterprise equitization steering committees shall submit to competent agencies for decision equitization plans, the initial sale of shares to strategic investors and criteria for selection of strategic investors.

Particularly for large-sized enterprises with a state capital amount of over VND 500 billion each and conducting business operations in specific areas or sectors (such as insurance, banking, post and telecommunications, aviation, coal mining, petroleum exploitation and mining of other precious and rare minerals) and parent companies of state economic groups or corporations, which are required to select in advance their strategic investors, agencies competent to decide on their equitization plans shall report to the Prime Minister for decision criteria for selection of strategic investors, modes of sale and quantity of shares to be sold to these strategic investors.

c/ The number of strategic investors allowed to purchase shares of each equitized enterprise must not exceed 3. Strategic investors may not transfer their purchased shares within 5 years from the date the joint-stock company is granted the first-time business registration certificate under the Law on Enterprises. In special cases, if they wish to transfer their shares within this period, approval of the shareholders’ general meeting is required.

d/ In case strategic investors fail to fulfill their commitments or violate the prescribed transfer restriction, they shall pay compensations for all losses strictly under signed contracts and current laws.

e/ Prices of shares to be sold to strategic investors shall be determined on the following principles:

- In case shares are sold to strategic investors after a public auction is held, the sale price shall be directly agreed upon between the equitization steering committee and these strategic investors but must not be lower than the lowest successful bid at the public auction.

- In case of direct agreement or auction among qualified strategic investors that have registered for share purchase before a public auction is held, the sale price is that agreed upon by the parties (in case of agreement) or the successful bid (in case of auction) but must not be lower than the reserve price approved by the agency competent to decide on the equitization plan.

f/ Strategic investors shall immediately deposit 10% of the value of shares which they register to purchase at the reserve price approved by the agency competent to decide on the equitization plan. In case of waiving the right to purchase shares, they cannot receive back their deposits.

4. When an enterprise is concurrently equitized and listed on a stock exchange, the agency competent to approve the equitization plan shall determine in the plan on initial offering of shares the maximum and minimum quantities of shares which may be ordered for purchase with respect to the volume of shares on sale to the public so that the equitized enterprise is eligible for listing. The maximum and minimum quantities of shares which may be ordered for purchase set out in the plan on initial offering of shares must not discriminate against investors of all economic sectors.

5. Members of enterprise equitization steering committees (excluding those who are representatives of enterprises); intermediary financial institutions; affiliated companies and associated companies in the same group or corporation and parent company - affiliated company conglomerates; and individuals engaged in providing consultancy, valuation or audit or auctioning shares of equitized enterprises may not purchase these enterprises’ initially issued shares.

Article 7. Currency used in share purchase payment

Domestic and foreign investors shall purchase shares of equitized enterprises in Vietnam dong.

Article 8. Equitization expenses

Equitization expenses shall be subtracted from state capital portions in equitized enterprises or proceeds from enterprise equitization. The Ministry of Finance shall guide contents and levels of equitization expenses.

Article 9. Shares and stocks

1. Charter capital is divided into equities called shares. The par value of a share is ten thousand Vietnam dong (VND 10,000).

2. Stocks are certificates issued by joint-stock companies or book entries certifying the ownership of one or several shares of shareholders in these companies. Stocks may be registered or bearer ones which must fully contain the principal contents specified in Article 85 of the Law on Enterprises.

Article 10. Principles of takeover of rights and obligations by joint-stock companies formed from enterprises with 100% state capital

1. Equitized enterprises shall arrange and employ to the maximum the number of laborers working at the time of equitization decision and provide benefits under current regulations to redundant laborers.

Joint-stock companies are obliged to take over all responsibilities for laborers transferred from equitized enterprises; may select, arrange and employ laborers and coordinate with related agencies in providing benefits to laborers in accordance with law.

2. Equitized enterprises shall coordinate with related agencies in examining and handling financial matters in order to determine the value of state capital portions at the time of official transformation into joint- stock companies.

3. Joint-stock companies may use all assets and capital amounts already handed over to them for organizing production and business; take over all interests, obligations and liabilities from equitized enterprises and have other rights and obligations provided by law.

Obligations and responsibilities of equitized enterprises which are additionally identified after their final settlement and handover by competent agencies to joint-stock companies do not belong to these joint- stock companies. For retrospective liabilities of or fines for violations of law committed by enterprises with 100% state capital arising after the handover to joint-stock companies, individuals or collectives responsible for paying compensations or fines and subject to disciplining in accordance with law must be clearly identified.

Article 11. Publicity and transparency of information and listing on the securities market

1. Equitized enterprises shall make public and transparent information on themselves, their equitization plans and land and labor management and use in accordance with the Law on Enterprises and other laws.

2. Equitized enterprises whose financial status fully meets the listing conditions specified by the securities law shall work out plans and roadmaps for listing on a stock exchange in accordance with law.

Agencies competent to decide on equitization plans shall determine the equitization simultaneously with the listing on the securities market in these equitization plans and disclose them to investors before the initial offering of shares.

Article 12. Equitization consultancy

1. Equitized enterprises may hire a consultancy organization to conduct enterprise valuation, and elaborate plans on equitization and initial offering of shares.

2. Agencies competent to decide on equitization plans shall select equitization consultancy organizations in accordance with law and the guidance of the Ministry of Finance.

3. Expenses for hiring equitization consultants are accounted as equitization expenses.